Brief supports appellants’ argument that the maps meet constitutional requirements and that there is no law-based, workable standard for separating permissible maps from impermissible maps in claims of political gerrymandering, particularly where, as in Wisconsin, traditional redistricting criteria were followed
August 8, 2017 – Milwaukee, WI – The Wisconsin Institute for Law & Liberty has filed an amicus curiae brief in the hotly debated case, Gill v. Whitford, urging the United States Supreme Court to decide once and for all that claims of political gerrymandering are nonjusticiable questions that are to be resolved politically and not by judicial intervention. This is so because there is not a workable standard by which such claims can be measured, particularly where, as in Wisconsin, the challenged map meets the traditional redistricting requirements.
As outlined in WILL’s brief, the United States Supreme Court and lower federal courts have never been able to agree on a standard for determining whether legislatures have gone “too far” in seeking a partisan advantage. This is because any such standard would itself require political judgment. Here the plaintiffs proposed an efficiency gap – the idea that the percentage of aggregate vote for candidates of the various parties ought not to vary too much from the proportion of legislative seats won by each party. WILL’s brief calls this “a dressed-up form of the proportionality analysis” that the Supreme Court has already rejected. There is no reason to expect these proportions to match, particularly where the voters of one party are more geographically concentrated than those of another. Even the district court conceded that this was so for Democratic voters in Wisconsin. Treating the existence of an “efficiency gap” as something that must be remedied or explained away imposes at least a de facto obligation on states to make up for the natural disadvantage that a party with geographically concentrated voters will experience. It is, ironically, an attempt to enlist the courts in a partisan project.
WILL President and General Counsel, Rick Esenberg, noted, “As Judge Griesbach noted in his dissent in Gill, the remarkable thing about the case is that these allegedly gerrymandered maps actually respect all traditional redistricting principles. The district court found a gerrymander without gerrymandering. We are confident the Supreme Court, as it has in the past, will decline to insert the judiciary into political questions on whether or not to make up whatever natural disadvantage these maps may confer.”
The Supreme Court will hear oral arguments in the case on October 3, 2017 with a decision possible by this winter and no later than summer of 2018. More information and background on this case (and all documents filed with the courts) is available here: http://www.scotusblog.com/case-files/cases/gill-v-whitford/.